M. Brent Leonhard is the Deputy Attorney General for the Confederated Tribes of the Umatilla Indian Reservation, the first tribal jurisdiction (along with the State of Ohio) to be designated by the Department of Justice as having substantially implemented the Sex Offender Registration and Notification Act requirements. He is also a principle author of the Model Tribal Sex Offender Registration Code. In this brief article he expresses his personal opinions about the Adam Walsh Act and implementation issues tribes face, concluding that the Act needs to be amended.

There are three general litigation forums for persons aggrieved by constitutional violations - exclusionary rule litigation in a criminal case, habeas corpus challenges to the legality of one’s confinement, and civil litigation seeking damages or equitable relief. Over the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in each of these three fields, and the scope of such limitations has begun to compound exponentially in recent years. The stagnating impact on the development of Fourth Amendment law as a result of the increasingly emaciated constitutional-remedial regime is cause for concern and the subject of this Article.

The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed to draw a principled distinction between the ordinary criminal and the mentally ill. This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors. Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him. This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.

Both recent Supreme Court decisions such as Van de Kamp v. Goldstein and Connick v. Thompson, as well as newspaper incidents such as the prosecutorial misconduct of Michael Nifong and the prosecutor of the Ted Stevens case, have brought renewed attention to the issue of prosecutorial accountability. Though many have, in the past, lamented or tired to measure prosecutorial misconduct, this article argues that the theory of the Connick case (failure to train prosecutors liability under section 1983), while failing to in itself represent a new method of accountability, (failure to respond and discipline prosecutors), can be tweaked in favor of a theory both legally and politically viable.

This paper focuses on the observable market effects of a more severe suppression of hard drug supply by the police. After surveying 624 regular heroin users in the Swiss cities of Bern and Zurich in a standardized way, the suppression policy had been intensified in Bern. To study the consequences of the policy change, the survey was repeated in both cities which resulted in another 419 standardized interviews. The results of this natural quasi experiment suggest that a more repressive practice of law enforcement agencies does not necessarily have the intended effects for central variables (e.g., price and quality of drugs, number of drug dealers) at the retail level of the illicit market.

Should kidnapping be a federal crime where use of the Internet or other telecommunications facilities is central to the crime’s execution, but the physical act itself takes place within the borders of a single state? Through the case study of the harrowing kidnapping and murder of 12-year old Brooke Bennett, this article examines a uniquely 21st century legal question about federalism, technology and criminal law.

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

A non-citizen convicted of violating a Texas state criminal statute is subject to a variety of harsh immigration penalties including deportation from the United States. Multiple variables determine whether a state criminal offense will trigger immigration deportation proceedings. A parallel concern is the impact that a state criminal offense may have on one of the routine offenses prosecuted in federal courts: illegal re-entry in violation of 8 U.S.C. s. 1326. The Supreme Court has made it constitutionally impermissible for a criminal defense attorney to recommend the entry of a guilty plea in the absence of a basic, working knowledge of how that guilty plea will affect the non-citizen's immigration status.

The circuits are currently split on the issue of the scope of apparent-authority consent regarding the searches of closed containers. Specifically, the circuits disagree about what measures law-enforcement officers should be required to take to determine ownership of a closed container when, while conducting a search pursuant to consent, the circumstances are ambiguous as to whether the consenter actually owns the closed container. Because the Sixth Circuit’s approach provides the most Fourth Amendment protection and is most faithful to Supreme Court precedent, the Court should resolve the current split by adopting the Sixth Circuit’s approach.

Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit recording any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not "clearly established." This Note argues that the right to monitor police and report misconduct is a clearly established, if not fundamental element, of American policing. It also argues that arresting and prosecuting individuals that record police conduct is an unconstitutional prior restraint on speech.

The modern question relating to AI entities becomes: Does the growing intelligence of AI entities subject them to legal social control, as any other legal entity? This article attempts to work out a legal solution to the problem of the criminal liability of AI entities. At the outset, a definition of an AI entity will be presented. Based on that definition, this article will then propose and introduce three models of AI entity criminal liability: the perpetration-by-another liability model, the natural-probable-consequence liability model and the direct liability model. These three models might be applied separately, but in many situations, a coordinated combination of them (all or some of them) is required in order to complete the legal structure of criminal liability. Once we examine the possibility of legally imposing criminal liability on AI entities, then the question of punishment must be addressed. How can an AI entity serve a sentence of imprisonment? How can death penalty be imposed on an AI entity? How can probation, a pecuniary fine, etc. be imposed on an AI entity? Consequently, it is necessary to formulate viable forms of punishment in order to impose criminal liability practically on AI entities.

This paper tests predictions of a structural, augmented supply-of-offenders model regarding the relative effects of police, public prosecution and courts, respectively, on crime. Using detailed data on the different stages of the criminal prosecution process in Germany, empirical evidence suggests that public prosecutors and their influence on the probability of conviction play a major role in explaining the variation of crime rates, while the impact of the severity of punishment is small and insignificant.

This paper aims to resolve a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he should be instructed to let it stand - even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer’s FIFA World Cup, many observers proposed not only that soccer introduce instant replay, but also that its governing bodies adopt the NFL rule directing that on-field calls be overturned only when the referee sees "indisputable visual evidence" (IVE) that that call was mistaken. In a small nutshell, this essay argues that conventional wisdom in favor of IVE likely rests upon mistaken premises, and offers several concrete proposals for reform.

The U.S. Supreme Court’s June 2000 decision in Dickerson v. United States was probably the first criminal procedure decision celebrated with an editorial in Broadcasting & Cable magazine. Noting that Chief Justice William Rehnquist opinion relied on the warnings’ well-established place in popular culture, the editorial acknowledged that, "[n]ext to the pledge of allegiance, the Miranda rights may be the most familiar common litany of the baby-boomer generation, thanks to TV." Professors Richard Leo and George Thomas have similarly observed "suspects are likely to have heard Miranda so many times on television that the Miranda warnings may have a familiar, numbing ring," and that "it is because of these shows and the mass media more generally - not the police, the legal system, or Supreme Court doctrine - that Miranda has become so much a part of our national culture." Critical to the Dickerson Court’s reaffirmation of Miranda was the fact of the public’s overwhelming awareness of Miranda and the fact that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Clearly, television dramas, and particularly police procedurals, get the credit for informing the public about the Miranda warnings. But, whether praising or skeptical toward portrayals of Miranda and its embedding in popular culture and the public consciousness, most study and commentary presumes that the consumers of serial police dramas on American television have had repeated exposure to the Miranda warnings. Dickerson was decided in part on the same premise.

Police officers in Lexington, Kentucky, followed a suspected drug dealer to an apartment complex. They smelled marijuana outside an apartment door, knocked loudly, and announced their presence. As soon as the officers began knocking, they heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence. The officers announced their intent to enter the apartment, kicked in the door, and found respondent and others. They saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search. The Circuit Court denied respondent’s motion to suppress the evidence, holding that exigent circumstances—the need to prevent destruction of evidence—justified the warrantless entry. Respondent entered a conditional guilty plea, reserving his right to appeal the suppression ruling, and the Kentucky Court of Appeals affirmed. The Supreme Court of Kentucky reversed. The court assumed that exigent circumstances existed, but it nonetheless invalidated the search. The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Increasing criminal sanctions may reduce crime through two primary mechanisms: deterrence and incapacitation. Disentangling their effects is crucial, since each mechanism has different implications for optimal policy setting. I use the introduction of state add-on gun laws, which enhance sentences for defendants possessing a firearm during the commission of a felony, to isolate the deterrent effect of incarceration. Defendants subject to add-ons would be incarcerated in the absence of the law change, so any short-term impact on crime can be attributed solely to deterrence. Using cross-state variation in the timing of law passage dates, I find that the average add-on gun law results in a roughly 5 percent decline in gun robberies within the first three years. This result is robust to a number of specification tests and does not appear to be associated with large spillovers to other types of crime.

In the late 1970's, rates of illegal immigration into the United States increased dramatically. This increase led to pressure on the federal government to find some way of dealing with the immigrants, culminating in the 1986 Immigration Reform and Control Act (IRCA). This paper seeks to examine the effects that the 1986 IRCA, which legalized over 2.5 million illegal aliens, had on the commission of crime in the United States. I find evidence that IRCA applicants are associated with higher crime rates prior to legalization and that, subsequent to legalization, this association disappears. I find drops in crime of approximately 1%-4% associated with one percent of the population being legalized, primarily due to a drop in property crimes. This fall in crime is equivalent to 80,000-320,000 fewer crimes committed each year due to legalization. Finally, I calibrate a labor market model of crime using empirical wage and employment data and find that much of the drop in crime can be attributed to greater job market opportunities among those legalized by the IRCA.

Professor Alexandra Natapoff, in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice (2009), lays out the failures of our current system of over-reliance on criminal informants. Natapoff addresses first the internal costs of these policies for the accuracy of trial determinations and the protection of an accused's constitutional rights. But she also addresses the external costs on families, neighborhoods, and the entire polity. She suggests ways to improve the system, not eliminate it, because snitches, properly used, serve important social purposes. This essay builds on Natapoff's work by addressing the ethical obligations of the American prosecutor in dealing with snitches individually and with the snitching system. Tracking Natapoff's division of costs into internal and external categories, this piece argues that prosecutors simultaneously have two different duties, one to the accuracy of trial determinations and the protection of constitutional rights, the other to broader groups and to the state and nation. The essay discusses the sources and nature of these duties and their practical implications, including addressing the imperative to combat otherwise-hard-to-prosecute crime.